Abat i Ninet, Antoni

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BLOG SERVICE COMMUNITY ABOUT !ANTONII  ABAT  II  NIINET — 18 October, 2017 Print " 0 ! " # $GLOBAL SOUTH IN COMPARATIVE CONSTITUTIONAL LAW SYMPOSIUMAuctoritas non veritas facitLegemA Response to Professor Roberto Niembro’sConceptualisation of Authoritarian ConstitutionalismThis blog post is a response to Roberto Niembro’s post on authoritarianconstitutionalism for  the  Global  South  in  Comparative  ConstitutionalLaw.  This  post  will  be  cross-posted  on  the  Blog  of  the  InternationalAssociation  of  Constitutional  Law  as  part  of  a  collaborationbetween Voelkerrechtsblog and the IACL blog . At the beginning of  the new century there are  more constitutionaldemocracies than ever, and authoritarian regimes seems to be weaker,isolated and more pointed and under pressure. Even so, the analysis ofthe relation between constitutionalism and authoritarianism continuesto fascinate academics worldwide. This interest has different reasons,some  of  them  related  to  the  current  majoritarian  epistemologicaldoctrine  that  links  constitutionalism  with  democracy,  freedom  andequality. Today, we conceive of a constitution as a charter of rights andfreedoms, as a synonym of legal and political guarantees — a device toprotect minorities and limit public power and arbitrariness. We alsotend to relate a constitution to the best values and virtues of the ruleof  law  that  links,  in  a  symbiotic  fashion,  democracy  and  law.Auctoritas non veritas facit Legem | Völkerrechtsblog http://voelkerrechtsblog.org/auctoritas-non-veritas-facit-legem/1 von 5 18.10.17, 22:10Constitutionalism is then a device that keeps this relationship alive.The  fact  is  that  just  about  every  state  in  the  world  has  a  writtenconstitution. The great majority of these declare the constitution to bethe  law  controlling  the  organs  of  the  state.  This  development  isgenerally  thought  to  be  a  tribute  to  an  especially  American  idea.Although there is  considerable variation in the substantive contentsand structural machinery of constitutionalism in various countries, thecentral  idea,  forged  in  the  founding  of  America,  of  public  powercontrolled by  enforcement  of  a  superior  law is  present  everywhereconstitutional government is proclaimed.This  romantic  idea  of  constitutionalism  contradicts  a  literalinterpretation of the Declaration of the Rights of the Man of 1789 thatin its article 16 remarked that observance of the law and separation ofpowers are the conditions of a constitution. It can be argued that thereis  no  separation  of  power  (horizontal  or  vertical)  in  authoritarianregimes  and therefore,  only  representative  democracies  in  a  liberalsense have constitutions. This presumption can be contested, and thisis exactly Niembro’s argument. I agree with his position — as Schmittpointed out, the foundation of the validity of a constitution does not liein the justness of the norm.I  think,  though,  that  Niembro  is  mistaken  to  define  authoritarianconstitutionalism as a new category. Authoritarian constitutions andconstitutionalism were found in  both the ancient  constitutions  andalso those of the communist regimes or theocracies. The reasons forwhich authoritarian regimes adopt constitutions are multiple; some ofthem  are  well  defined  by  Niembro  but  others  should  also  behighlighted.  Constitutions  and  constitutionalism  are  tools  toimplement legal and political rationality. Constitution is  reason; legalreason, from the top of the legal-political pyramid. Constitutions haveseveral  dimensions,  and authoritarian regimes need constitutions todominate  and  to  garner  apparent  sources  of  legitimacy  other  thanbrute force.I  agree  with  Niembro  when  he  considers  that  authoritarianconstitutionalism is not absurd or nonsensical but I do not considerthe concept perplexing, despite the inconsistencies that Roberto findsAuctoritas non veritas facit Legem | Völkerrechtsblog http://voelkerrechtsblog.org/auctoritas-non-veritas-facit-legem/2 von 5 18.10.17, 22:10in comparison with the functions that constitutional  provisions andprinciples realise in liberal democracies. The question is whether wewill  define  as  authoritarian  some  of  the  most  qualified  liberaldemocracies  when  they  also  breach  some  of  the  principles  thatNiembro mentions in his piece.The  post  goes  further  with  a  very  interesting  point,  the  illusorycharacter of constitutionalism. In my understanding, what the authordefines  as  ‘illusion’  is  part  of  a  major  feature  of  legal  and  politicalsystems — political theology and the true undemocratic element of allconstitutions.  Illusions  are  not  only  created  but  needed  byconstitutionalism  to  consecrate  a  supra-legitimacy  which  requestscompliance instead of citizen participation.The drafters of constitutions consciously play the role of a civil God;the  Constitutional  or  Supreme  Court  inhabits  the  role  of  secularprophets;  the  Constitution  is  as  a  sacred  tablet  with  holisticdimensions;  and the people  are  the chosen people.  As  the law wasreceived by Moses on the tablets, so too did the Constitution adopt alegal, moral and religious character. Niembro’s definition of illusion isadopted to keep this phenomenon alive. From the perspective of thesocial  class  distinction  and  struggle,  as  the  author  mentions,constitutionalism if it does not protect minorities (the people) does nothide effective constitutional  aspirations but  oppresses and excludesthe powerless and minorities. It becomes what Marxist authors (fromMarx to Pashukanis  or  Collins)  opposed,  a  tool  of  class  or  minorityoppression.It is not surprising that authoritarian constitutionalism also plays therole of an illusion to keep the ‘people’ oppressed and encourage theirobedience.  However,  the  same  degree  of  delusion  that  Niembrocorrectly  points  out  in  his  post  occurs  in  liberal  constitutionalism:justice  and  equality  for  the  poor  and  excluded,  ‘illegal’  immigrantstreated as slaves in prosperous countries, or states that are sufferingpolitical and economic corruption as an systemic and endemic disease.Constitutionalism in these liberal societies is also an illusion. We canthen ask if there is any difference between the kind of illusion.I  agree  again  with  Niembro  when  he  states  that  authoritarianAuctoritas non veritas facit Legem | Völkerrechtsblog http://voelkerrechtsblog.org/auctoritas-non-veritas-facit-legem/3 von 5 18.10.17, 22:10constitutionalism is indeed a category that helps us to understand andanalyse the way that power is exercised in all kind of regimes. But howdare we do this? We would ruin the main goal (at least the goal forsome)  of  the  epistemological  construction  of  authoritarianconstitutionalism, the distinction, the differentiation — we need theconcept  to  differentiate  us,  we  need  to  define  something  asauthoritarian  to  remark  that  we  are  not.  Hegel  is  crystal  clear  indefining  this  sort  of  epistemological  constructions.  To  sum  up,  ifconstitutionalism  does  not  provide  the  tools  to  project  illusions,Hobbes will be rights and ‘auctoritas non veritas facit legem’.Antoni Abat i Ninet, Professor of Comparative Constitutional Law at theUniversity of Copenhagen’s Law School.Cite as:  Antoni  Abat  i  Ninet,  “Auctoritas  non  veritasfacit  Legem”,  Völkerrechtsblog,  18  October  2017,  doi:10.17176/20171018-220844.ISSN 2510-2567Print Facebook Twitter Email   RelatedConstitutionalauthoritarianism, notauthoritarianconstitutionalism!ConceptualizingauthoritarianconstitutionalismTowards aConstitutionalism of theWretched31 August, 2017In "Global South inComparativeConstitutional Law"17 July, 2017In "Global South inComparativeConstitutional Law"27 July, 2017In "Global South inComparativeConstitutional Law"PREVIOUS POSTThe identification ofindividuals#NEXT POSTThis is the most recentstory.Auctoritas non veritas facit Legem | Völkerrechtsblog http://voelkerrechtsblog.org/auctoritas-non-veritas-facit-legem/4 von 5 18.10.17, 22:10No CommentLeave a replyLogged in as ajv2016. Log out?SUBMIT COMMENTNotify me of follow-up comments by email.Notify me of new posts by email.Copyright © 2016 · | ISSN 2510-2567 | Impressum & Legal % ! & "Auctoritas non veritas facit Legem | Völkerrechtsblog http://voelkerrechtsblog.org/auctoritas-non-veritas-facit-legem/5 von 5 18.10.17, 22:10

Auctoritas non veritas facit Legem: A Response to Professor Roberto Niembro’s Conceptualisation of Authoritarian Constitutionalism

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Auctoritas non veritas facit Legem: A Response to Professor Roberto Niembro’s Conceptualisation of Authoritarian Constitutionalism

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